Communications

This is a request under the Freedom of Information Act. I hereby request the following records:

The most recent version of the manual describing the rules and guidelines of the Department of Defense’s embedded reporter program (AKA “embedding media”), which allows members of the news media to report while embedded with active duty troops serving in conflict zones.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

This is an interim response to the three Freedom of Information Act (FOIA) requests received from you June 17, 2014, for Department of Defense records reference embedding reporters with active duty troops serving in conflict zones. The requests were assigned case file numbers:

14-F-0989, request for embedded reporter program manual of rules and guidelines;14-F-0990, all documents or memoranda, timeframe January 1, 2001 and January 1, 2014, describing the practice of assigning a "favorability" or "favorable" rating to applicants, and,14-F-0991, most recent manual used for assessing, screening, and/or approving individuals who apply to become embedded reports or journalists.

Your requests were aggregated and will be processed under case number 14-F-0989. See 32 C.F.R. § 286.28(f); DoD Regulation 5400.7-R § C6.1.6. This determination is based on the following: (1) the requests were all received June 17, 2014; (2) all requests seek records held by Department of Defense; and, (3) the overlapping nature of the requests.

This office processes FOIA requests for the Office of the Secretary of Defense and the Joint Staff (OSD/JS) only. FOIA requests involving the search of offices outside of OSD/JS should be directed to the appropriate FOIA office. You may find links to the non-OSD/JS DoD FOIA requester services on our website at: http://www.dod.mil/pubs/foi/.

According to the FOIA's legislative history, a description would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort, and reasonably describes records if the agency is able to determine "precisely" what records are being requested.

Courts have identified at least three (3) ways in which a FOIA request can fail to reasonably describe the records sought: 1) the description may be too vague to allow the agency to determine precisely what records are being requested; an agency is not required to have clairvoyant capabilities to discover the requestor's need; 2) broad sweeping requests lacking specificity are insufficient; and, 3) even where a request sufficiently describes the records sought, an agency is not required to comply with a request so broad that it would impose an unreasonable burden upon the agency. An agency need not honor a request that requires an unreasonably burdensome search. The "reasonably describes" requirement exists because the FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters. As such, it is the requester's responsibility to frame requests with sufficient particularity to ensure the searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested.

In recent court action, James Madison Project (JMP) vs. CIA, the court referred to the request as "too broad because the term "all documents 'relating to' a subject is usually subject to criticism as overbroad since life, like law, is a 'seamless web,' and all documents 'relate' to others in some remote fashion." Massachusetts v. U.S. Dep't of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989). Such a request "unfairly places the onus of non-production on the recipient of the request and not where it belongs - upon the person who drafted such a sloppy request."

We need to know exactly what record you are requesting wherein you set out that you want "all documents or memoranda describing the practice of assigning a "favorability" or "favorable" rating to applicants." Name the documents you want. Is it manuals, instructions, guidelines, or ratings? Please also narrow the timeframe of this particular part of your request. As it stands, this part of your request is not reasonably described. If we have not heard from you by close of business June 24, 2014, we will believe that you are no longer interested and will close and not task that particular portion of your request that was given number 14-F-0990, and aggregated into 14-F-0989.

With regard to your request for a waiver of any applicable fees, a fee waiver is appropriate when "disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(iii). In making a determination, six factors are considered as to whether your request satisfies this statutory standard: (1) whether the subject of the requested records concerns the operations or activities of the government; (2) whether the disclosure is likely to contribute to an understanding of government operation or activities; (3) whether disclosure of the requested information will contribute to the understanding of the general public; (4) whether the disclosure is likely to contribute significantly to public understanding of government operations an activities; (5) whether the requester has a commercial interest that would be furthered by the requested disclosure; and, (6) whether any such commercial interest outweighs the public interest in disclosure.

While the requested information does concern the operation sand activities of the government and does not appear to be intended for a commercial interest, it is not clear how the responsive documents - should they exist - would significantly contribute to the public's understanding of the operations and activities of the government. After carefully reviewing your request, I am denying your fee waiver request because the information stated does not support how the documents will significantly contribute to the public's increased understanding of the operations and activities of the government.

I have determined that you should be placed in the "Other" category for fee purposes as you have indicated that you do not seek access to these records for commercial purposes. The "Other" fee category affords you two hours of search time and 100 pages of duplication free of charge. As you did not provide any willingness to pay search will be halted after your two free hours have been expended. If you wish to add a willingness to pay please contact the action officer assigned to your request at your earliest convenience.

You should also know that although we have already begun processing your request, we will be unable to respond to your request within the FOIA's 20 day statutory time period as there are unusual circumstances which impact on our ability to quickly process your request. These unusual circumstances are: (a) the need to search for and collect records from a facility geographically separated from this Office and (b) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. For these reasons, your request has been placed in our complex processing queue and will be worked in the order the request was received. Our current administrative workload is 1267 open requests.

The action officer working your request is Mr. Charles Marye, copied on this email. Please reference the case number indicated above in all correspondence with this office.

If you are not satisfied with this action, you may appeal to the appellate authority, the Director of Administration and Management, Office of the Secretary of Defense, by writing directly to the Defense Freedom of Information Policy Office, Attn: Mr. James Hogan, 1155 Defense Pentagon, Washington, D.C. 20301-1155. Your appeal should be postmarked within 60 calendar days of the date of this letter, should cite to case number 14-F-0989, and should be clearly marked "Freedom of Information Act Appeal."

Suzanne CouncilSenior AdvisorOffice of the Secretary of Defense and Joint Staff Office of Freedom of Information1155 Defense PentagonWashington, DC 20301-1155

We continue to process your request. It is our policy that each request receives prompt attention, and every effort is made to treat all requesters equally. As previously noted, and unfortunately, our backlog of open requests at the time your request was received was over 1,267. Once I receive a response, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, I will send you a formal response letter to your request. Please note all documents are reviewed before we respond. Further note the unusual circumstances concerning your cases are: (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. These 3 factors do have an impact on the processing of your case. I appreciate your patience and understanding in this matter.

I’m writing to ask for a status update on case number 14-F-0989 (under which you consolidated several other requests). We last corresponded about this request nearly 10 months ago, in December 2014. Is the request nearing completion?

I am the action officer working your FOIA request 14-F-0989. The request is waiting on one component's response, which I hope to have in the next few weeks. At that point I will be able to begin final processing. I anticipate being able to respond to you by 31 December of this year.